Core Copyright

Last week, I addressed a common problem in which lawyers and non-lawyers conflate copyright and intellectual property (IP). In this post, I address another common confusion — the conflation of copyright (or copyright infringement) and plagiarism — and rationalize why I think being the subject of plagiarism allegations is much more damaging.

In order to distinguish copyright and plagiarism, it would be helpful to establish operative definitions for both concepts. I assiduously have avoided defining copyright thus far — I did not define copyright in the post on intellectual property — because I believe the term (and its defining parameters) should be defined carefully, particularly given the contemporary use of rhetoric and framing in this area of the law. Therefore, readers should consider as temporary the copyright definition I provide in this post, a placeholder I am using to complete this comparison. I will update this post later to reference the operative definition of copyright that we will be using throughout this publication.

[Interim] Definition of Copyright

With that, I am temporarily defining copyright as a legal system or program that governs the use of original, recorded works. There are several sets of guidelines within this system that define the system’s boundaries: one set of guidelines establishes how one’s work becomes eligible for copyright protection; one set of guidelines establishes how long that protection will last. Another set of guidelines outlines uses, control over those uses, several instances the detail exceptions to that control.

Perhaps most importantly, there are guidelines that define illegal or dishonest behavior within the system, and a set of penalties a wrongdoer can expect to incur if a neutral party determines that his use of an original, recorded work goes beyond a control or use exception and becomes illegal or dishonest. This part of the copyright system is very important, especially as it relates to comparisons between copyright and plagiarism.

Defining Plagiarism

In contrast, the Oxford English Dictionary (aka the OED) defines plagiarism as the practice of taking someone else’s work or ideas and passing them off as one’s own. Several things are important in this definition. First, it mentions a “practice” of taking someone else’s work or ideas: in other words, OED suggests plagiarism is something that is customary, habitual, or repeated. It seems reasonable that custom, repetition or habit is part of plagiarism: with few things original under the sun (at least according to Ecclesiastes 1:9), it is rather easy to use or references others’ ideas without explicit attribution or credit. Despite the increasing tendency — especially in legal scholarship — to cite every single sentence, neither life nor work should require such an extreme approach to crediting someone else (particularly since they probably got it from yet another person).

So, the first thing you need to know about plagiarism is that one shouldn’t worry about the occasional missed citation. Give credit for others’ work where it’s due, and give credit to others where you have used others’ work as the basis of your own original idea or creation, particularly when you seek to promote, publish, or commercialize your idea or creation. But do not lose sleep over failing to attribute or cite every single sentence in a writing.

The second interesting thing about OED’s plagiarism definition is that it talks about taking someone else’s work or ideas. This part of the definition reminds me of the common (and commonly irritating) chatter I often hear about “plagiarizing oneself.” Let’s be clear: you cannot plagiarize yourself. You can fail to cite your own work, and by failing to cite your work, you will miss an opportunity to promote your work — always a bad thing. But your failure to cite your own work is not plagiarism.

Further, you can recycle your work and ideas (which, again, probably are not wholly yours in the first place) without citing that work, and you will not “plagiarize yourself.” Now, there are some twists here, both contractual and doctrinal. The contractual twist usually arises when you’ve submitted a work for publication and retain the copyright, or the copyright reverts back to you. Typically in these scenarios, the publisher will require in the contract that you note that the material has been published previously in XYZ magazine or newspaper. Therefore, you will see at the conclusion of this article that some of its parts were published previously in Information Today, a newspaper for whom I have written a column for several years.

The doctrinal twist usually arises in the area of scholarly publishing. Academic disciplines vary widely when it comes to scholarly publication, but as a general rule, academic publishers only accept work that was not previously published elsewhere. In this context, people frown on recycling your work; publishers generally want only the new and funky fresh (i.e. unpublished) stuff. (Of course, in an era of personal Web sites, blogs, bepress and SSRN, what constitutes “publication” these days? That’s another post entirely.) So in effect, your academic discipline may not allow you to recycle your work; it only may allow you to cite your work if it has been published previously.

Therefore, the second thing you need to know about plagiarism is that you cannot “plagiarize yourself” because plagiarism is defined as using someone else’s work as your own. (Of course, use all opportunities to cite yourself liberally where appropriate.)

The final thing we need to know about plagiarism, especially in the way it differs from copyright, is that a charge or finding of plagiarism has no legal authority. Unlike the copyright system, plagiarism has no civil or criminal penalties, nor is it even a legally cognizable claim under law. But as I analyze below, however, plagiarism’s lack of legal standards is not necessarily positive.

Biting

Finally, there is the issue of “biting.” Biting is a form of copying that usually is discussed within hip hop circles. To bite means that a person not only copies another’s words without attribution, but also routinely delivers those words using another person’s style. In many ways, biting is more concerned with style copying because in the performance arts, and particularly in hip hop, the way in which you present your art is as important as the art’s substance. (In many ways, the presentation cannot be separated as distinct from artistic content.)

Biting is a term that has been used mostly in hip hop, but it extends to performance art in general.

Biting typically does not arise as an issue in scholarly work as much as it is does performance art, partly because it is hard to cite a style. Further, one could distinguish between biting and plagiarism by noting the latter’s emphasis on words and ideas, and its absence of style considerations. Still, I would be remiss in discussing unattributed copying or use of another’s work without mentioning the impact of biting.

[Note: Article continues after the jump.]

The Convergence of Copyright & Plagiarism

While copyright and plagiarism usually are mutually exclusive concepts, they intersect occasionally. For example, an idea can be plagiarized, but an idea cannot be protected by copyright. (Remember, that ideas may be protected by other forms of IP.) But if an idea is recorded — written on paper or audio taped, for example — and original, then the original, recorded idea can be both plagiarized and infringed.

Let’s take this a step further by referring back to copyright’s guidelines. As I just mentioned, an original, recorded idea can be subject both to plagiarism and copyright infringement. Earlier in this article, though, I mentioned that the copyright system includes several sets of guidelines, one of which details the circumstances under which a copyrighted work may be used despite an owner’s control of that work.

In essence, this means that copyright has a mechanism for avoiding penalty, even if at first blush the use of a protected work seems to violate the copyright owner’s ability to exclusively control that work. Plagiarism, on the other hand, has no such exceptions, or “outs.”

Therefore, it is entirely possible that a person can use a work that is protected by copyright, avoid a legal penalty by qualifying for a copyright exception (or limitation, as these guidelines are called officially), yet still be in danger of committing plagiarism. In my view, this one reason why plagiarism allegations are more damaging than copyright infringement allegations. I spend the rest of this article explaining the others.

Why Plagiarism Allegations May Be More Harmful Than Copyright Infringement Allegations

Even though copyright violations can result in fines or even incarceration, I think plagiarism allegations are much more damaging to a person’s reputation than allegations of copyright infringement. I’ve already outlined part of the reason I think this is true: even if I run afoul of copyright’s use rules, I may be able to avoid a violation if I can find an applicable limit on that use rule. And there are many use rule limitations that are available to me in the copyright system. Fair use is one of the broadest (and the most commonly cited), but there are several others — including some others that may work better than fair use in a given context.

Additionally, the copyright system does not let owners charge users with violation without an owner providing some fundamental forms of proof, or without requiring the owner to follow a specific set of guidelines for presenting that proof to whomever decides whether or not a violation occurs. Despite a popular mythology that currently surrounds copyright infringement lawsuits, it is neither easy nor efficient for a copyright owner to sue an alleged violator successfully for a violation. In addition to complying with the copyright system, an owner also must comply with a separate system that governs filing the appropriate legal and alleging documents, and yet a third system for producing factual proof. Complying with these three systems simultaneously takes enormous resources, both for the owner and the alleged violator, but the systems provide essential institutional safeguards for both.

On the other hand, plagiarism allegations require no compliance with any recognized legal system, and have none of the same safeguards. Plagiarism allegations have no burdens of proof or technical requirements; such allegations do not even need to come from the owner or creator of the original work (who would be the injured party). In many cases, third parties identify and allege acts of plagiarism; those same third parties are not held to any standards in making those allegations, nor are they held to any responsibility or punishment if the allegation turns out to be false.

This is particularly important in situations where the accuser’s motives may be questionable. I’ll use an example from a few of years ago.

In 2006, The Wall Street Journal published a feature article that detailed allegations of a plagiarism scandal in Ohio University‘s mechanical engineering department. (The Journal does not have a version of the article freely available on its Web site, but an Associated Press report published at the time in the Washington Post provides similar information.)

An alumnus of the school, which is the oldest public university in the state of Ohio, claimed more than 30 graduate students in the department had plagiarized substantial portions of their graduate theses. Based in part upon these allegations, the school’s administration ordered the students to address the allegations or risk having the school revoke their degrees.

But the Journal article also noted that the accuser, also a student in Ohio University’s mechanical engineering department, had difficulty getting his thesis topic approved. Under copyright’s procedural systems, the accuser’s potential bias would be vetted and determined to be, or not to be, an important influence on the veracity of his claims. At the time I wrote about the Ohio University problem, I did not find anything that would suggest the alleger’s own degree problems unduly influenced his claims against fellow doctoral students. Still, that is an issue any system that investigates wrongdoing should be equipped to handle. But plagiarism charges undergo no such systemic scrutiny. Instead, plagiarism accusations tend to stick, placing on the accused the burden to prove a negative (i.e. that he did not commit plagiarism).

Further, plagiarism allegations presume the person who is accused has a guilty mind, that he intentionally and knowingly copied and failed to attribute another person’s work. But there are several cases in which plagiarism allegations are not about intent to deceive or withhold credit, but instead sheer sloppiness. Such sloppiness should not be excused, but industrial sloppiness seems considerably less egregious than intending to cheat. Certainly, the former does not seem to warrant ongoing damage to the accused’s professional or scholarly reputation, which is what seems to happen in many cases of plagiarism where the person who is accused does not already have a significant, positive prior reputation.

(As an aside, an issue that seems to be lost within these discussions is the failure of educational institutions — domestic and international, at all levels — to train scholars properly for the rigors of high-level academic work, including technical writing and citation. I will leave that for others to analyze.)

The lack of standards in plagiarism cases make an accusation virtually impossible to defend, but the mere allegation of plagiarism can be an irreversible smudge against a person’s professional and personal values and ethics. This modern version of the scarlet letter points to one of the biggest problems with plagiarism: without any clear standard, no burden of proof, and virtually no defenses, mere accusations of plagiarism can crush reputations faster than any allegation of copyright infringement, which provides clear, standardized systems of proof.

The argument here is not that plagiarism ceases to exist or should not be punished. Instead, I argue that plagiarism allegations are too easy to make, not hard enough to prove, and potentially too damaging to reputation not to have workable and neutral systems in place to manage accusations and violations. In this regard, copyright’s reliance on several different systems for charges, punishment, and remedies is superior.

(Note: Portions of this article were published previously by in Computers in Libraries and Information Today.)

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